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Rushed bills would allow Big Ag to regulate itself
Factory Farms_Ken Stark

WISCONSIN - A bill making changes to the state’s Livestock Facility Siting law was expected to receive a hearing in the State Senate Committee on Agriculture, Revenue and Financial Institutions on Tuesday, Feb. 18. That bill is Senate Bill 808 (SB808), and is a companion to Assembly Bill 894 (AB 894). 

After working out of the public eye with groups like the Wisconsin Towns Association, and representatives from the dairy and pork industries, the two bills were announced to the public on Monday, Feb. 10. Public hearings were scheduled for Thursday, Feb. 13, and the bill is on pace for a vote before the current legislative session ends this month.

It's unclear whether Gov. Tony Evers' administration agrees with the plan, which would need Evers' support to become law. To voice support or concerns with this fast-tracked legislation, contact:

Governor Tony Evers: 608-266-1212

Senator Jennifer Shilling: 608) 266-5490

Representative Loren Oldenburg: 608-266-3534

Advocates said the bill would streamline and speed up the process dictated by a 14-year-old rule, and give farm groups effective veto power over a rewrite of the siting rules. 

But representatives of Wisconsin Farmers Union and Midwest Environmental Advocates, as well as Democratic lawmakers, expressed frustration at last Thursday’s public hearing about having been cut out of the development of the bill, which seems to be moving very quickly to a vote in both houses of the legislature.

Representatives from the Department of Agriculture, Trade and Consumer Protection (DATCP), which would gain extensive new responsibilities if the measure were enacted, weren’t briefed on the bill’s specifics until the day before the hearing, two days after the bill was introduced.

Lobbyists for the Wisconsin Towns Association and for the livestock industry testified in last Thursday’s public hearing that the new bill arose in the aftermath of the controversy over the proposed revision that was shelved late last year after the Wisconsin Senate voted to fire Governor Tony Evers pick for Secretary of Agriculture, Brad Pfaff. The revisions were part of the required review by a technical advisory committee (TAC) every four years. 

The TAC had formulated a proposed list of revisions to the rule and sent them out for public comment meetings around the state. Those hearings took place in August and September of 2019. This was the first time in the 14-year history of the law and rule that the process had gotten out of committee. No revisions have ever been made since the law was originally passed, although the four-year reviews were conducted.

In addition to some relatively controversial changes regarding required setbacks for very large operations, and changes in how odor scores are calculated, many of the changes involved updates to very-out-of-date federal technical standards incorporated into the ATCP 51 rule.

On the eve of a vote last December about whether to send the proposed changes to the Governor, the DATCP board cancelled the vote. This meant that unless the current four-year revision process was completed by February, it would be another three-to-four years before any revisions to the law and rule could be proposed again. The DATCP Board never took that vote.

Proposed changes

Proposed changes to the law in the bills currently moving through the legislative process are very significant, and would disrupt the balance struck in the original legislation between consistent statewide regulation of CAFOs and preservation of some local control in siting the facilities.

Those changes included:

• Eliminating the four-year review process called for in the law

• Changing the composition of the TAC to favor big ag with a five-seat majority, giving only four seats to groups that represent local government, environmental advocacy groups, and citizen interests

• Raising the bar on local government’s ability to create regulations more strict than the state standards

• Explicity limiting the fees that can be charged by local government for review of permit applications to $1,000

• Preventing local governments from requiring bonding from CAFO operators to cover any costs incurred with clean up of manure spills

• Prohibiting required setbacks from roads greater than 100 feet

• Changing permit approval from local government to DATCP, and allowing local governments to block a DATCP-approved permit only if the site was in violation of setback requirements in the bill; the location wasn’t zoned properly; or for building, electrical or plumbing code violations.

Input at hearing

Bill co-sponsor, Rep. Travis Tranel of Cuba City, said that the changes are necessary because farmers are increasingly required to “get bigger or get out.” He said that farmers required certainty in the law in order to plan their expansions.

Several speakers favoring the bill argued that letting farms grow as large as their owners wanted was necessary to save the rural economy. But Kara O’Connor, lobbyist for the Wisconsin Farmers Union, said research has shown that rural communities thrive more when farms are smaller, supporting a more diverse local economy, than when they are dominated by a few large players. The Farmers Union opposes the bill and has called for stricter regulation of large livestock operations.

“We see greater economic activity and vitality in communities with more farms rather than fewer,” O’Connor said.

The Towns Association is on record as backing the bills. When the Town of Marietta in Crawford County enacted a CAFO moratorium and began to consider its options, the town board thought that taking on permitting or regulatory authority for CAFOs exceeded their town’s expertise or financial resources.

“The way it currently works now, we are asking our town boards a lot of times to make decisions that they’re just not necessarily comfortable or equipped to make,” said state Rep. Travis Tranel.

About one-third of the state’s 72 counties and eight percent of Wisconsin towns have implemented the rule and established livestock site permitting, according to the Wisconsin Towns Association’s executive director, Mike Koles.

“Right now what we’re asking local government to do is to process a bunch of state rules,” Koles said in his testimony. “The rule is complex, and evaluating an application under it requires local governments to incur the expense of hiring outside experts such as scientists and lawyers, he continued, which has discouraged many towns from adopting the rule.”

Democratic lawmakers and some hearing witnesses said the collaboration in developing the bills had excluded others with a stake in the issue.

Noting the new responsibilities the bill assigned to the agriculture department, Sen. Janis Ringhand (D-Evansville) asked Senate bill co-sponsor Marklein, “Did you consult with DATCP during the [bill-writing] process and see what their thoughts were?”

Marklein said that “around Christmastime” he had spoken to DATCP’s deputy secretary and acting head, Randy Romanski, but “at that time we didn’t have a whole lot” in the way of specifics. “We did meet yesterday for a long time with him and the staff,” Marklein added.

Offering testimony from DATCP for information — neither favoring nor opposing the bill — Angela James, assistant deputy secretary, outlined the complicated process for producing and getting approval for administrative rules to implement the legislation, along with the challenges of providing necessary staffing to carry out its intent. The job at DATCP overseeing the CAFO program has been vacant since November of 2019.

Crawford County resident and president of the Crawford Stewardship Project board, Edie Ehlert, attended the hearing and testified. The points Ehlert made were as follows:

Ehlert testified that the elephant in the room is that CAFOs and the Livestock Siting Law create controversies in rural areas, not the other farmers and people who live there. She testified that CAFOs as a method of agricultural production are incompatible with other local economic ventures. 

“This bill effectively further erodes all other economic ventures in rural areas, including other farming ventures, tourism, recreational land use, clean water, and residential home values," Ehlert testified.

Citing costs incurred in some counties to adequately research a CAFO permit application of tens-of-thousands of dollars, Ehlert commented on the permit application fees currently allowed, and proposed in the new bills.

“Local government needs the ability to charge the applicant for the research needed to make informed decisions,” Ehlert said. “But the state has capped those fees for CAFO applicants such that each application can cost local government tens-of-thousands of dollars if they do a thorough review for health, safety, and welfare of all citizens.”

Ehlert also expressed concerns about the increasingly wetter weather experienced statewide in recent years, and the vulnerable underlying karst bedrock and steep hill and valley terrain in southwest Wisconsin.

“The intense rain events we now have cause immense damage to our waters here in southwest Wisconsin,” Ehlert said. “Crawford Stewardship Project’s surface water quality monitoring data has literally shown off the charts levels of E.coli in our streams these last few years. Farmers, whether they want to or not, have been spreading on frozen saturated ground, whether they have nutrient management plans or not, as big equipment could not get out in fields much this last season, especially in the fall. This will further diminish water quality here for drinking water, farming, fishing, and boating.”

Ehlert also pointed out that the average rainfall standards incorporated into calculation of nutrient management plans are likely out of date.

Ehlert also pointed out that in the Driftless, where typical agricultural fields have a shallow depth of soil to fractured karst bedrock, the amount of manure generated by a CAFO operation may not be able to be disposed of safely.

Ehlert also addressed the contention that local government has options to regulate CAFOs through adoption of zoning. 

“Zoning always comes up in the discussion, and can go a long way to help the situation in our rural areas, especially those with consolidated residential development,” Ehlert said. “However, all ag zoning must allow CAFOs due to the current siting law. They can be limited to a certain area of your ag zoning, but local governments must allow them. Many local governments don’t want to make the decision about which residents to sacrifice to living next to CAFOs.”

Mary Doughterty of Bayfield County questioned the rush to pass the legislation and the timeline’s fairness for citizens in rural areas.

 “The timeline of this bill is alarming — it was introduced on Monday, the hearing is today, and it’ll pass out of executive committee on Tuesday,” Dougherty said. “Since this bill will largely impact citizens in rural Wisconsin, outside of Madison, it’s nearly impossible to rearrange schedules to travel and testify. I live five-and-one-half-hours away, and between my work schedule and the travel distance, I’m unable to attend in person.”

Dougherty also addressed the bonding that local governments can require to protect themselves from the hazards that CAFOs can present to their communities.

“This bill puts language pre-empting local governments from being able to require bonding into the statute, thus granting DATCP the authority to prohibit it,” Dougherty said. “Bayfield County passed an Operations Ordinance in 2016 that “requires the applicant to ensure that sufficient funds will be available for pollution clean-up, nuisance abatement, and proper closure of the CAFO if it is abandoned or otherwise ceases to operate as planned and permitted. This bill, if passed, could remove this provision from our ordinance and is an affront to Bayfield County’s local control.” 

Ehlert summed up her comments at the public hearing.

“The expedited timeline for these bills gives a clear message - you don’t want to give thoughtful time to review,” Ehlert said. “The last Livestock Siting rule revision process lasted over 30 months, with huge investments of DATCP time, and an impressive body of input from citizens, experts, and other agricultural stakeholders. All this was unceremoniously scrapped. The language of this bill only became public on Monday, and we’re already at a hearing to approve it.”